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By Jacco Bomhoff

The language of balancing is pervasive in constitutional rights jurisprudence world wide. during this publication, Jacco Bomhoff bargains a comparative and historic account of the origins and meanings of this talismanic kind of language, and of the felony discourse to which it really is significant. modern dialogue has tended to work out the expanding use of balancing because the manifestation of a globalization of constitutional legislation. This publication is the 1st to argue that 'balancing' has constantly intended significantly various things in numerous settings. Bomhoff makes use of specific case experiences of early post-war US and German constitutional jurisprudence to teach that an analogous specified language expresses either biting scepticism and profound religion in legislations and adjudication, and either deep pessimism and excessive aspirations for constitutional rights. An realizing of those extensively assorted meanings is vital for any assessment of the paintings of constitutional courts this day.

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Extra info for Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse

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On this ambivalence, see also Llewellyn (1942), p. ’) Horwitz (1992), pp. 12, 14f; Hull (1997), p. 33. Oliver Wendell Holmes famously described Langdell as ‘the world’s greatest living theologian’ in his review of his case book on contract; a qualiication later repeated almost verbatim by Felix Frankfurter. See Frankfurter (1930), p. 665. Balancing’s beginnings: concepts and interests 43 1879 that regardless of such scholarly tendencies to abstraction, the law was generally administered ‘by able and experienced men, who know too much to sacriice good sense to the syllogism’,64 it is Roscoe Pound’s much less charitable view, voiced thirty years later, that has since dominated received wisdom.

342–44. See also Stolleis (1992), p. 331. 38 BALANCING CONSTITUTIONAL RIGHTS 3. Conceptual jurisprudence in Germany: Heck’s Begrifsjurisprudenz What, then, was the precise nature of the critique of conceptualism that Philipp Heck and other German authors invoked as the background to their proposals for a jurisprudence of interests? 37 In later work, Heck summarized his critique as follows: he older school, the Jurisprudence of Concepts, coni ned the judge to a function of subsuming facts under legal concepts.

Section B discusses the images of latenineteenth-century legal thought and its associated methods adopted 2 4 5 Fuller (1948), p. xix. 3 Ibid. Pound (1913), p. 708; Kennedy & Belleau (2000), p. 304. Friedmann (1967, 1944), p. 336. See also Friedmann (1961), p. 828 (‘A comparative analysis of the thought of common law jurists such as Pound and Cardozo with that of Continental jurists such as G ény or the German representatives of “Interessenjurisprudenz ” […] reveals striking similarities’); Antieau (1985), pp.

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